Tuesday, October 10, 2006

More Argumentum Ridiculosis from the Ombudsman

To the challenge of the Ombudsman for Comelec detractors to produce evidence of criminal activity, I say, read your own Report! The testimonies and statements therein corroborate and extend much of what the Supreme Court has already found, and contains the required evidence, in my opinion, to establish a manifest pattern of partiality by Comelec against its own rules, of self-evident bad faith, and the clumsiest, easily discernible type of gross negligence that of course the Ombudsman is at great pains to excuse or hide. But to the extent that new facts and admissions are now documented in the testimonies and statements of principal and material witnesses to this infamous episode, and are in the public record, I would assay that the Ombudsman has miserably failed in her attempt to obscure her own clear breach of duty in this matter.

But I don't know when I shall quite tire of picking out all the juicy lil gems of half-baked pseudoscientific absurdities to be found in the Supplemental Resolution of the Ombudsman in response to Supreme Court decision ITF vs. Comelec.

These gems of ignorant technobabble or intentional obscurantism are nonetheless useful, because they can be strung together into a necklace of graft and corruption, the elements of bad faith, partiality and negligence that accompanied Comelec's handling of the automation project.

Take for example the following "testimony" extracted from the DOST USec. for Scientific and Technological Services, Fortunato dela Pena:
Undersecretary Dela Peña testified that while the initial technical evaluation conducted by the DOST showed some flaws in the results of the tests, he confirmed, however, that they were principally due to external causes not attributable to the machines, such as the improper shading and feeding of the ballots. When asked about the difference in the required accuracy level in the RFP, on one hand, and that stated in the list of the technical requirements, on the other, he corroborated Secretary Alabastro’s statement that 99.995% level and not 99.9995% was the one recommended and adopted. He also said that the 99.995% accuracy rating is in fact higher than the accepted international standard of accuracy which is only a “spread of 99.73%” or a “6-standard deviation spread.”
First of all, let me just say that it is grossly inexcusable, deceptive, misleading and negligent of the Ombudsman to be putting MATHEMATICALLY FALSE STATEMENTS in its Report. A 99.73% confidence level does not correspond to a "6-standard deviation spread." It corresponds to a confidence interval of Z=3 not Z=6. The reference to an "accepted international standard of accuracy" is intentionally vague and serves only as a fig leaf to hide Comelec's EVIDENT BAD FAITH in the handling of the accuracy rating requirements. The report is peppered with lame attempts like the above, to assail the High Court's conclusion that Comelec had awarded the contract to MPC despite failing to fulfill key requirements, even after the Comelec ordered "verification tests"on the items it failed!

Throughout its Report, the Ombudsman is at great and god-awful pain to somehow exculpate the gross, inexcusable negligence of the Comelec in awarding contract to the MegaPacific Consortium (MPC) despite the fact that its machines had miserably failed evaluation tests on 27 key requirements -- not once but twice.

In the above, the Ombudsman quotes "testimony" from DOST that the MPC machines failed the tests because of "external causes not attributable to the machines, such as the improper shading and feeding of the ballots."

Hmmm... yet those so-called "external causes" would seem to be just the kind of real-world conditions that the automated counting machines will face in the field. After all, a counting machine must deal with ballots in all conditions. In fine, the DOST's initial reports that MPC and TIM machines had failed their evaluation tests imposed a DUTY on Comelec to reject all bids and restart the bidding process.

Undersecretary dela Pena's testimony is presented by the Ombudsman after that of his superior, Sec. Alabastro, and repeats the bewildering and enchanting assertion that the technical evaluation tests were really just tests of the HARDWARE and not really of the SOFTWARE.

Do tell. But how does one explain the fact that the KEY REQUIREMENT #20 which MPC failed, as quoted by the Supreme Court, reads as follows:
20. Is the Program able to detect previously downloaded precinct results and prevent these from being inputted again into the System?
I think program means software, so even the Ombudsman appears to be party to the dissemination of disingenuity on a ridiculous scale, ridiculous for being so obvious to readers of Philippine Commentary.

In so far as the Comelec evidently breached that duty by neglecting to do what reason and morals dictated at that point they should do -- to reject all bids -- to that extent the element of MANIFEST PARTIALITY to BOTH bidders has been established, or at least strongly indicated.

It was important for Comelec to have two bidders of course, to make the argument being through the Ombudsman today, that they treated both fairly and impartially. We shall see about that in subsequent posts here.

2 comments:

Bokyo said...

Dean,

I read the SR and tried myself to be convinced of it. I am not a lawyer but applying basic logic would tell us how the Ombudsman should go with it. That is to compare the actions made by BAC and Comelec against the bidding procedures (as simple as that) and evaluate from there whether they committed grave abuse of discretion. Nowhere in the SR did I found any such attempt by the Ombudsman. Same is true with the machines. Should compare the procedures in arriving at the choice and also compare the machine with the required specs. I find it weird that the Ombudsman relied too much on the oral testimonies rather than studying deeply the events that transpired.
I thought I've read the worse in Estrada vs. Desierto.

Rizalist said...

Bokyo,
The Ombudsman's SR, as a piece of English Legal Composition does not approach the competence and fluency of Supreme Court Decisions. It was laced with material that the lawyers who wrote it were obviously not familiar, or even comfortable with -- all that software and hardware and all those decimal places! Coupled with its vacuous and laughable rhetoric, the SR inadvertently documents testimonies that will be damaging.